1. Acceptance of Terms
1.1 The website located at www.thankful.com.au (hereafter, the "Website") is owned and operated by Thankful Pty Ltd (ACN 164 032 811), trading as Thankful Concepts Pty Ltd (ABN 76 165 838 399) (hereafter, “Thankful”).
1.3 Thankful reserves the right to change the Website and these Terms from time to time without notice to you, and your continued use of the Website indicates your continued acceptance of the Terms as modified.
2. Intellectual Property Rights
2.1 Except where otherwise indicated, Thankful is the sole owner or licensee of all intellectual property comprised in the Website (including all intellectual property comprised in the Website content), and nothing in these Terms constitutes a transfer of any intellectual property rights in or related to the Website and/or Website content to you or any third party.
2.2 You acknowledge and agree that the Website and the content contained there in are protected by copyright, trade marks, service marks, patents, design registrations, and other proprietary rights and laws, and you agree to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Website.
2.3 Reproduction of part or all of the Website or its contents in any form is prohibited unless for personal, non-commercial use, or as otherwise expressly permitted by Thankful.
3. User content
3.1 Where the Website provides you with the ability to upload content to the Website (such content which may include text, written forum comments, data, images, photographs, audio files, audio-visual files or software) (collectively, User Content”), you:
(a) grant Thankful a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use the User Content in any way (including, without limitation, by reproducing, changing, and communicating the User Content to the public, including by way of publication in a book) and permit Thankful to authorise any other person to do the same thing;
(b) consent to any act or omission by Thankful which would otherwise constitute an infringement of your moral rights under the Copyright Act 1968 (Cth) (“Copyright Act”) in relation to the User Content; and
(c) acknowledge and agree that Thankful may delete, modify, or otherwise exploit in any manner contemplated by the Copyright Act any User Content submitted to or via the website by you.
3.2 In each instance when you upload User Content to or via the Website, you:
(a) represent and warrant (and can demonstrate if requested) to Thankful that you have all right, title, interest and authority in the User Content which is necessary to grant the licences and consents set out above;
(b) represent and warrant (and can demonstrate if requested) to Thankful that you have the permission to use the name and likeness of each person whose image appears in any User Content in the manner contemplated by these terms;
(c) represent and warrant to Thankful that the use or exploitation of User Content by Thankful and/or any other user of the Website will not infringe the rights of any third party (such rights which may include, but are not limited to, intellectual property rights and rights under privacy legislation); and
(d) agree and undertake to Thankful to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the User Content to or via the Website. The licence and warranties and undertakings provided above survive the termination of these terms.
4. User conduct
4.1 You must not add any content to the Website (“User Content”):
(a) unless you hold all necessary rights, licences and consents to do so;
(b) that would cause you or Thankful to breach any law, regulation, rule, code or other legal obligation;
(c) that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;
(d) that would bring Thankful and/or the Website into disrepute;
(e) that infringes the rights of any person;
(f) that you know (or ought reasonably suspect) is false, misleading, untruthful or inaccurate;
(g) that contains unsolicited or unauthorised advertising (including junk mail or spam);
(h) that contains computer or software viruses, files, programs or the like that are designed to:
(i) disrupt, damage, or otherwise interfere with the ordinary functionality of any software, hardware or telecommunications; or
(ii) obtain unauthorised access to any system, information, security device belonging to Thankful or any third party.
4.2 In using the Website, you must:
(a) not take any action that is likely to impose (including disproportionately large uploads) upon the Website or the infrastructure of Thankful (or its third party service providers);
(b) not interfere with the proper working of the Website or any activities conducted via the Website;
(c) not use any automated or manual software or process to “crawl”, “spider” or engage in similar conduct in relation to the Website;
(d) not reverse engineer or otherwise seek to obtain any source code forming part of the Website (except to the extent that such restriction may be prohibited by law); and
(e) abide by all laws (whether local, state, national or international) which apply in connection with your use of the Website.
5. Third party sites
5.1 The Website may contain links to other websites and/or content added by people other than Thankful. Thankful does not endorse, sponsor or approve any such user-generated content or any content available on any linked website.
5.2 You acknowledge and agree that when you access a third party website available via a link contained on the Website:
(a) you do so at your own risk; and
(b) Thankful is not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third party website;
(c) you acknowledge and agree that Thankful will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access and/or use of any third party website available via a link on the Website.
Whilst Thankful will endeavour to maintain its online services, Thankful does not guarantee that the Website will always be accessible to you, nor does it guarantee that services provided by this Website will not be interrupted.
Furthermore, whilst Thankful operates strict internal procedures to preserve the integrity of the Website, Thankful does not warrant or represent that any information that you may download or copy from or via the Website will be error or virus free.
7. Warranties and indemnities
7.1 To the full extent permitted by law, Thankful excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.
7.2 To the full extent permitted by law, you release, indemnify and hold Thankful harmless from and against liability for all loss or damage suffered or incurred by you in the course of or as a result of using the Website (including any consequential or incidental damages), including loss or damage suffered in connection with:
(a) any decisions that you may make on the basis of information or material contained on the Website; and
(b) your use of the Website or any third party website which has been accessed via the Website (including damage suffered as a result of software or other viruses to which you may have been exposed in the course of using the Website).
7.3 In the event that Thankful terminates the Website and/or your access to the Website pursuant to paragraph 10, you release Thankful from all liability for any loss or damage suffered by you as result of or arising out of such termination.
7.4 Each of you and Thankful agree that these Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations, save that if such legislation applies, you agree that Thankful’s’s liability in respect of any claim is limited to (at Thankful’s’s option):
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; and
(b) in the case of services, the supply of the services again.
8. Returns, Cancellations and Claims
8.1 You shall not return any Goods to Thankful without obtaining prior authorisation from Thankful. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and your name and address must also be enclosed. Freight charges must be paid by you. All Goods must be returned in the original packaging and you shall be responsible for all damage incurred during return shipment. A credit note will be issued by Thankful only after Goods returned are either collected by Thankful’s’ authorised representative or agent or returned to it by you as set out above. You shall not deduct the amount of any anticipated credit from any payment due to Thankful but must await receipt of a credit note.
8.1.1 All goods returned must be of merchantable and reasonable quality such that the goods are complete in their original packaging, not shop soiled, are not price ticketed and are still listed in the current price list.
8.1.2 If Thankful accepts the return of any Goods that have been ordered, Thankful may charge you fifteen per cent (15%) of the invoice price as a handling fee with freight costs and risk remaining the responsibility of you.
8.1.3 No cancellations or partial cancellation of an order by you shall be accepted by Thankful unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by Thankful, will indemnify Thankful against all loss, without limitation. Cancellation will not be accepted on goods that are not regular stock which are in the process of manufacture or ready for shipment.
8.1.4 All complaints, claims, or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with your purchase order must be submitted by you to Thankful in writing within seven (7) business days of the date of the invoice rendered for the supply of the Goods. Otherwise, you shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with your purchase order.
8.2 If you are unsatisfied with any services provided by Thankful, you must notify Thankful and provide the relevant invoice to Thankful. You must specify details of the services provided, the date of services, your complaint and your name and address. To compensate you for unsatisfactory services Thankful will provide the services again.
8.3 Where you cancel your subscription during a calendar month, you will remain liable for the amount payable in respect of the full calendar month and, for the avoidance of doubt, no pro rata adjustment will be made.
9. Product and service purchases
9.1 All prices specified on the Website are in Australian dollars and all payments will be processed in Australian dollars, unless indicated otherwise Any variations in price as a consequence of currency fluctuations will be payable by you.
9.2 By placing an order for the purchase of a product or service through the Website you, as the customer, agree to be liable for the payment of the purchase price of that product or service, together with all other charges contained in this clause 9.
9.3 In the event that you purchase a product or service through the Website, payment for that product or service, together with the payment of all other charges contained in this clause 9, will be due at the time at which you order the product or service.
9.4 Unless otherwise specified by Thankful, all product and services prices quoted on the Website exclude:
(a) any statutory tax, including any goods and services tax, duty or impost levied in respect of the product or services;
(b) all costs and charges incurred by Thankful in relation to the insurance, packing, transport and delivery of the product, all of which are payable by you at the time of order in addition to the product or service price.
9.5 Thankful reserves the right to correct errors or update information on the Website at any time without notice, including information relating to product and service prices and availability.
9.6 Any times quoted for delivery and/or supply are estimates only. Thankful will not be liable for any delay in delivery and/or supply, and you will not be relieved of any obligation to accept or pay for a product or service ordered through the Website by reason of any delay in delivery or supply.
9.7 Thankful may, in its absolute discretion, refuse to supply any order made via the Website by any customer for products or services, in which event any amount paid by the customer to Thankful via the Website will be refunded within 30 days.
9.8 Payments for goods and services via the Website are processed by PayPal (or any other third party payment provider that Thankful may elect and advise on the Website). You agree that PayPal is responsible for processing and the security of your payment, and you hereby release Thankful from any liability in relation to such payment. When processing a payment via the Website you agree to be bound by PayPal’s (or the relevant third party payment provider) terms and conditions, as applying at the date of payment, and as notified on the third party payment provider’s website. If you are unable to locate the third party payment provider’s terms and conditions, please contact us for assistance before your payment is made.
10.1 These Terms terminate automatically if Thankful ceases to operate the Website for any reason.
10.2 You acknowledge and agree that:
(a) Thankful retains complete editorial control over the Website and may alter, amend or cease the operation of the Website at any time in its sole discretion; and
(b) the Website may not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes).
10.3 Thankful may terminate your access to the Website at any time without giving any explanation.
10.4 Thankful may terminate these Terms immediately by notice to you in writing if you breach these Terms in any way.
10.5 Termination of these Terms and/or your access to the Website does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination, including any liability to make a payment due under clause 9 in respect of a product or service ordered by you via the Website.
11.1 You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms.
11.2 If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
11.3 These Terms, together with any transactions processed via the Website, are governed by the laws of Victoria, Australia and each party submits to the jurisdiction of the courts of that State and all courts of appeal therefrom.